U.S. Supreme Court Hears Argument: Week of January 7, 2007
The U.S. Supreme Court will hear argument in seven cases this week. Video of ACS' Preview of the 2007-2008 Supreme Court Term is available in ACS' Multimedia Library. More information on the Term, including briefings, analysis, and videos, may be found here.
Monday, January 7
- Baze v. Rees (constitutionality of lethal injection protocol)
- Dada v. Mukasey (postponement of agreement for alien to voluntarily leave U.S.)
Tuesday, January 8
- Gonzalez v. U.S. (waiver of right to Article III judge to preside over jury selection when counsel agreed to have a U.S. magistrate instead)
- Boulware v. U.S. (taxation on diversion of corporate funds to shareholder of a firm that has no profits)
Wednesday, January 9
- Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita (constitutionality of requiring voters to show a photo ID before they may vote) (Cases consolidated for one hour of argument)
- Kentucky Retirement Systems v. EEOC (scope of age bias in disability benefits packages)
Questions Presented are below the fold.
Although the Court has authorized civil actions challenging portions of a method of execution, it has not addressed the constitutionality of a method of execution or the legal standard for determining whether a method of execution violates the Eighth Amendment in over 100 years-- leaving lower courts with no guidance on the law to apply to the many lethal injection challenges filed since the Court’s rulings allowing the claim in a civil action. Lower courts have been left to look to cursory language in the Court’s opinions dealing with the death penalty on its face and prison conditions. As a result, the law applied by lower courts is a haphazard flux ranging from requiring “wanton infliction of pain,” “excessive pain,” “unnecessary pain,” “substantial risk”, “unnecessary risk,” “substantial risk of wanton and unnecessary pain,” and numerous other ways of describing when a method of execution is cruel and unusual.
Considering that at least half the death row inmates facing an imminent execution in the last two years have filed suit challenging the chemicals used in lethal injections, certiorari petitions and stay motions on the issue are arriving before the Court so often that this issue is one of the most common issues. Thus, it is important for the Court to determine the appropriate legal standard, particularly because the difference between the standards being used is the difference between prevailing and not.
This case presents the Court with the clearest opportunity to provide guidance to the lower courts on the applicable legal standard for method of execution cases.
This case arrives at the Court without the constraints of an impending execution and with a fully developed record stemming from a 20-witness trial. The record contains undisputed evidence that any and all of the current lethal injection chemicals could be replaced with other chemicals that would pose less risk of pain while causing death than the tri-chemical cocktail currently used. Although this automatically makes the risk of pain associated with the use of sodium thiopental, pancuronium bromide, and potassium chloride unnecessary, relief was denied on the basis that a “substantial risk of wanton and unnecessary pain” had not been established. This squarely places the issue of whether “unnecessary risk” is part of the cruel and unusual punishment equation and whether an “unnecessary risk” exists upon a showing that readily available alternatives are known. The Kentucky Supreme Court’s decision gives rise to the following important questions:
I. Does the Eighth Amendment to the United States Constitution prohibit means for carrying out a method of execution that create an unnecessary risk of pain and suffering as opposed to only a substantial risk of the wanton infliction of pain?
II. Do the means for carrying out an execution cause an unnecessary risk of pain and suffering in violation of the Eighth Amendment upon a showing that readily available alternatives that pose less risk of pain and suffering could be used?
III. Does the continued use of sodium thiopental, pancuronium bromide, and potassium chloride, individually or together, violate the cruel and unusual punishment clause of the Eighth Amendment because lethal injections can be carried out by using other chemicals that pose less risk of pain and suffering?
IV. When it is known that the effects of the chemicals could be reversed if the proper actions are taken, does substantive due process require a state to be prepared to maintain life in case a stay of execution is granted after the lethal injection chemicals are injected?
1. Whether Petitioner was rendered statutorily ineligible for adjustment of status to lawful permanent resident because he did not depart the United States voluntarily pursuant an order of the Board of Immigration Appeals (“BIA”), despite the fact that Petitioner had timely withdrawn his request for voluntary departure.
2. Alternatively, whether the period of voluntary departure granted by the BIA was tolled by the timely filing of Petitioner’s Motion to Reopen and Reconsider his removal to seek relief in the form of adjustment of status.
Petitioner, a Mexican citizen who does not speak English, was represented by counsel at his federal drug-trafficking trial. After appearing before a United States district judge at several pretrial conferences, petitioner was brought before a United States magistrate judge for jury selection. At a bench conference outside of petitioner’s presence and before petitioner had the assistance of an interpreter, defense counsel orally consented to the magistrate judge’s presiding over the jury selection process. Thereafter, the magistrate judge did not obtain petitioner’s consent or even mention that his attorney had consented outside of his presence.
Based on the foregoing, the question presented is as follows:
Is a federal criminal defendant’s counsel’s oral consent to have a United States magistrate judge preside over jury selection binding on the defendant when the record does not reflect the defendant’s own knowing and voluntary waiver of his constitutional right to have an Article III judge preside over jury selection?
Several United States Courts of Appeals have addressed this issue and have issued conflicting decisions.
1. What effect must a federal court give a final, non-collusive state court judgment adjudicating ownership of property in determining a taxpayer’s federal income tax liability arising from that property?
2. Whether a taxpayer who seeks to invoke the return of capital rule in a criminal tax case must show a contemporaneous intent to treat the corporate distribution as a return of capital?
Crawford v. Marion County Election Board (consolidated with Indiana Democratic Party v. Rokita)
Whether an Indiana statute mandating that those seeking to vote in-person produce a government-issued photo identification violates the First and Fourteenth Amendments to the United States Constitution.
Kentucky Retirement Systems v. EEOC
This Petition involves a public employee retirement plan that includes normal and disability retirement benefits. A member who is eligible for normal retirement benefits based on attained age plus a minimum service requirement, or based on service alone, is not eligible for disability retirement benefits. Because age may be a factor in determining eligibility for normal retirement, it is an indirect factor in determining eligibility for disability retirement. Moreover, the calculation of disability retirement benefits is based upon actual years of service plus the number of years remaining before the member reaches retirement age or eligibility based on years of service alone; age may thereby be an indirect factor in determining the amount of disability retirement benefits.
The question presented in this Petition is accordingly:
Whether any use of age as a factor in a retirement plan is “arbitrary” and thus renders the plan facially discriminatory in violation of the Age Discrimination in Employment Act?